Editorials on the cross-section where politics and culture meet cyberspace

Sunday, July 10, 2011

When Free Speech Trumps Privacy Rights Online...

In preparation for a conference panel that I'll be on in September, this is the first of a few notes and comments related to the state of Internet Privacy today.

First, let's be clear about the arguments for why harm from speech on the Internet is potentially greater than harm from speech in other media: 1) the potential audience is much larger, 2) the speech remains indefinitely discoverable in countless data archives, and 3) that information can be easily located through common search engines.

The textbook example of a contemporary online privacy case involves Facebook tagging. Millions of Facebook users post photos and tag other individuals who are pictured in them. The person doing the tagging does not need the consent of the person being tagged, and once it is done, the photo will show up on the Facebook walls of not only those two individuals involved, but also all of their friends in the network. Once an embarrassing photo is posted of someone, not only can't it be removed by the person being embarrassed (un-tagging themselves being their only recourse), but all of his or her friends will be instantly notified about its existence.

Most people find this disconcerting. However, an argument for why the law should NOT prohibit such privacy invasions is presented by Geoffrey R. Stone in "Privacy, the First Amendment, and the Internet" (a chapter in the book, "The Offensive Internet", edited by Saul Levmore and Martha C. Nussbaum).

Stone asks, under what circumstances, if any, may the government penalize an individual for communicating "private" information about another person?

Warren and Brandeis famously established the "right to privacy" tort in a law review article in 1890, but the Supreme Court has never directly squared this tort with the First Amendment. Case law suggests that the government may only be able to regulate speech, in this privacy context, if it is deemed "low-value speech" - on par with false statements of fact, threats, fighting words, express incitement of unlawful conduct, and obscenity.

The central argument for treating online privacy invasions as "low-value speech" is that it is said to be "non-newsworthy" and therefore does not meaningfully contribute to the sort of public discourse that the First Amendment was intended to promote.

But defining what is "non-newsworthy" is obviously problematic. Is a nude photo of Sarah Palin non-newsworthy? How about a Facebook status revealing that someone is gay (when it is, in fact, a true statement)? How about a post revealing that a particular woman has had an abortion? Is that non-newsworthy? What if that same woman was running for student-body president?

The problem, clearly, is that what is an invasion of privacy for some is newsworthy for others. And the intent of the First Amendment has always been to prevent the government from restricting speech by default when that is unclear.

So here's a summary of the situation... the government can only penalize an individual for communicating "private" information about another person if it is deemed "low-value speech"; and an invasion of privacy online can only be considered "low-value speech" if it can be proved to be "non-newsworthy"; and this is a term so subjective, vague, and open-ended that it is beyond anything the Court has ever upheld in its First Amendment jurisprudence.

Therefore, Stone says that this is the reason why, legally and constitutionally speaking, the Court does (and is right to) consider free speech to trump privacy rights online.

It's a logical argument, but it strikes me as more of a legalistic explanation than something that might be remotely helpful in addressing the problem. The Facebook victim in our example above won't find much comfort in hearing, "Sorry, your case does not meet the thresholds of non-newsworthiness and low-value speech".

What's even more frustrating is how Stone concludes that the law "can no longer effectively deal with non-newsworthy invasions of privacy... the combination of the First Amendment and social and technological change has, for all practical purposes, gobbled [the tort of privacy] up completely. To argue otherwise is simply to tilt at windmills". He then finishes by saying that our only hope is that "the much greater visibility of human foibles in the modern era will likely lead people to learn how to put the mistakes of others in their larger context".

Geez, how depressing is that? His legal explanations answered why the Courts have had a hard time thus far in addressing online privacy violations, but to suggest that the law simply can't deal with the problem at all, and we should just cross our fingers and hope that people will eventually develop some perspective and learn to place embarrassing Facebook photos in their proper context is, well, pretty defeatist.

Hopefully, in the coming weeks, as I explore the scholarship on this issue in greater detail, I can come up with a few constructive ideas that are a little less apocalyptic.

2 Comments:

I don't see how Facebook tagging isn't clearly consented to by every Facebook member. When you sign up to Facebook you agree to their terms and conditions where you give permission to others to tag you in photos. Furthermore, there are privacy settings available where you can prevent others from tagging you within Facebook.

This is a non-issue that is in contrast to other social media sites like Dirtyphonebook and others that allow people to post all kinds of personal information without any consent whatsoever.

Your point is well-taken. Certainly, every Facebook member gives their consent to much of this type of activity when they join the site. However, it's problematic when people can still label photos with your name even after you've untagged yourself. Or if, as has happened before, some high school kid takes a picture of another student while they're on the toilet and then posts it to Facebook. Even though the student might not be tagged directly, he still has no recourse in removing that picture, despite its being disseminated throughout the networks of all the other kids he goes to school with.

Dirtyphonebook and their ilk are clearly problems as well. No question about it. Yet, Geoffrey Stone's article would suggest that Free Speech prohibits the law from intervening even then.